HQ 083930: POLYGRATE and POLY-FRAME Flooring Components for Farrowing Crates and Weanling Decks

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                         HQ 083930
                                      May 19, 1989

             CLA-2:CO:R:C:G   083930 JAS

             CATEGORY:   Classification

             TARIFF NO.: 3925.90.0000; 9817.00.5000

             Mr. Ken Church
             Faroex Ltd.
             P.O. Box 1950
             Gimli, Manitoba, Canada
             ROC 1B0

             RE:  POLYGRATE and POLY-FRAME Flooring Components
                  for Farrowing Crates and Weanling Decks

             Dear Mr. Church:

                  In your letter of January 20, 1989, you inquire as to the
             tariff classification of plastic articles called POLYGRATE and
             POLY-FRAME, from Canada, used as flooring in the birthing and
             raising of baby pigs.  You provided additional information by
             telephone on May 17, 1989, and stated that POLYPEN components
             were not the subject of this request.  Our ruling follows.

             FACTS:

                  POLYGRATE designates modular flooring sections made from
             a mixture of polypropylene plastic and 20 percent by weight
             fiberglass.  These are slotted grates that come in 1ft. x
             30in. and 1ft. x 2ft. sections.  They have beveled edges and
             rounded surfaces to minimize injury to the piglets and side
             and end interlocks to provide a snap-together fit without the
             need for metal hardware.  POLY-FRAME describes a series of
             2ft. x 4ft. beams plus tripod legs, joist hangers and end
             brackets, all made from 40 percent unsaturated polyester resin
             by weight mixed with 60 percent fiberglass by weight.  You
             have indicated that the plastic provides form and corrosion
             resistance while the fiberglass provides strength.

                  Farmers will order a predetermined number of slotted
             grates and beams.  In use, the beams are fitted togther on a
             concrete barn floor to create a desired configuration.  Grate
             sections are then interlocked at their ends to provide a
             unique "nesting" effect on their underside to permit them to

















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             lock onto the beams.  Pregnant sows are allowed to give birth
             to piglets on the grates.  POLYGRATE and POLY-FRAME units
             used with POLYPEN pickets (not a part of this request) to form
             an enclosure are often called farrowing crates.  Pig wastes
             fall through the slots to the barn floor below where they are
             hosed away.  After several weeks the piglets are weaned from
             their mothers and placed in similar configurations where they
             are allowed to fatten before being sent to market.  Such
             confinement areas with pickets are called weanling decks.  To
             minimize stress on the piglets, nipple drinkers are installed
             and heat lamps often placed in the barn to create an
             incubator-like atmosphere.

                  You state that POLYGRATE and POLY-FRAME are used by
             farmers as parts of incubators for baby piglets, and are
             analogous to poultry incubators and brooders classifiable free
             of duty in subheading 8436.91.0000, Harmonized Tariff Schedule
             of the United States Annotated (HTSUSA).  You conclude,
             therefore, that this merchandise is properly classifiable
             under the duty-free provision for other parts of barn or
             barnyard machines, in subheading 8436.99.0040, HTSUSA.  You
             state that Customs officers in our Pembina office have
             tentatively advised you that the articles are classifiable as
             other articles of plastics, in subheading 3926.90.9050,
             HTSUSA.

             ISSUE:

                  Are POLYGRATE and POLY-FRAME units classifiable in
             subheading 8436.99.0040, as articles of plastic, or in some
             other HTSUSA provision?

             LAW AND ANALYSIS:

                  There is no evidence that POLYGRATE and POLY-FRAME units
             function as parts of piglet incubators or similar farm-type
             agricultural machinery, so as to warrant classification in
             subheading 8436.99.0040, HTSUSA.

                  Structural elements of plastic used, for example, in
             floors, walls or partitions, ceilings or roofs, are
             classifiable in heading 3925 as builders' ware of plastics.
             See Chapter 39, Note 11(b), HTSUSA.

                  For classification purposes under the HTSUSA, goods
             consisting of different materials which are prima facie
             classifiable in two or more provisions (in this case in















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             heading 3925 or as articles of glass fibers in heading 7019),
             are to be classified as if they consisted of the material
             which gives them their essential character.  See General Rule
             of Interpretation 3(b), HTSUSA.  In this case, the plastic
             gives these goods their essential character because it
             provides their form, the rigidity necessary for flooring use,
             and resistance to chemicals and corrosion.  In addition,
             Explanatory Notes, the official explanation of the HTSUSA at
             the international level, indicate that Chapter 39 includes
             products consisting of glass fibers impregnated with plastics
             and compressed together.  POLYGRATE and POLY-FRAME are used to
             build or construct an elevated base on a ground surface,
             usually in a barn.  Therefore, these articles qualify, for
             tariff purposes, as structural elements used in floors, and
             are classifiable as other builders' ware of plastics, not
             elsewhere specified or included, in subheading 3925.90.0000,
             HTSUSA.  The rate of duty is 5.3 percent ad valorem.

                  However, subheading 9817.00.5000, HTSUSA, provides for
             the duty-free entry of machinery, equipment and implements to
             be used for agricultural or horticultural purposes.  This is
             an actual use provision.  Notwithstanding the existence of a
             competing HTSUSA provision for these articles, they are
             classifiable in subheading 9817.00.5000, HTSUSA, if the
             conditions and requirements thereof and any applicable
             regulations are met. See Chapter 98, U.S. Note 1, HTSUSA.

                  POLYGRATE and POLY-FRAME units are implements to be used
             for a recognized agricultural purpose, and are not otherwise
             excluded from classification in subheading 9817.00.5000 by
             U.S. Notes to Subchapter XVII, HTSUSA.

             HOLDING:

                  POLYGRATE and POLY-FRAME units are classifiable as other
             builders' ware of plastics, in subheading 3925.90.0000,
             HTSUSA, dutiable at the rate of 5.3 percent ad valorem.

                  However, these articles may be eligible for duty-free
             entry under subheading 9817.00.5000, HTSUSA, upon compliance
             with the actual use requirements of sections 10.131 through
             and including 10.139, Customs Regulations.  Copies are
             enclosed for your reference.


                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division










             Enclosure